The State ex rel. Rowan v. Pollock

• Decision Date: 07 October 1925
• Docket Number: 26551
• Citation: 276 S.W. 20,310 Mo. 620
• Parties: THE STATE ex rel. CLARENCE ROWAN v. JOHN H. POLLOCK, Justice of Peace for Kaw Township of Jackson County
• Court: Missouri Supreme Court

276 S.W. 20

310 Mo. 620

THE STATE ex rel. CLARENCE ROWAN v. JOHN H. POLLOCK, Justice of Peace for Kaw Township of Jackson County

No. 26551

Supreme Court of Missouri

October 7, 1925

Preliminary rule quashed.

W. W Graves, Jr., and E. M. Tipton for relator.

(1) This act is presumed to be constitutional. Its unconstitutionality must appear beyond a reasonable doubt before it can be declared unconstitutional. State ex rel v. Exchange, 269 Mo. 346; County v. Lydy, 263 Mo. 77; Strangham v. Myers, 268 Mo. 580; Wire Co. v. Woolbrinck, 275 Mo. 339; State ex rel. v Com., 270 Mo. 547; State v. Railroad, 242 Mo. 337; Ex parte House, 227 Mo. 617. (2) The act of 1925 is a valid act and does not conflict with any of the provisions of the Constitution. State v. Railroad, 242 Mo. 339; Hawkins v. Whittaker, 242 Mo. 688; State ex rel. v. Railroad, 246 Mo. 512; Randolph v. Springfield, 257 S.W. 449.

John T. Barker for respondent.

(1) The attempt to separate justices of the peace in Kaw Township into two classes -- salaried and nonsalaried -- renders said act unconstitutional and void. Sec. 53, Art. 4, par. 32, Mo. Constitution; State ex rel. v. Kimmell, 256 Mo. 611; State ex rel. v. Railroad, 246 Mo. 514; State ex rel. v. Taylor, 224 Mo. 477; State ex inf. v. Hedrick, 241 S.W. 425; State ex rel. v. Gordon, 236 Mo. 162; State ex rel. v. Roach, 258 Mo. 563; Lige v. Railroad, 204 S.W. 510; 1 Lewis's Sutherland on Stat. Con., 7199; Cooley's Const. Lim. (6 Ed.) 481, 482. (2) The Act of 1925 allows residents of Kaw Township to be sued only before a salaried justice of the peace, but allows residents of other townships found in Kaw Township to be sued before any justice of the peace. This is an unjust discrimination and renders the act void. State ex rel. Saline Co. v. Wilson, 232 S.W. 140; Sec. 53, Art. 4, par. 32, Mo. Constitution; State ex inf. v. Hedrick, 241 S.W. 425; State ex rel. v. Kimmell, 256 Mo. 639; State ex rel. v. Roach, 258 Mo. 563; Lige v. Railroad, 204 S.W. 510. (3) Said act, in depriving respondent of his jurisdiction, in effect abolishes his office and is unconstitutional. Sec. 37, Art. 6, Mo. Constitution; State ex rel. v. Gordon, 236 Mo. 161; State ex rel. v. Seattle, 4 A. L. R. 211; 29 Cyc. 1368.

Graves, C. J. All concur, except Ragland, J., who dissents.

OPINION

GRAVES

Conditions, not necessary to mention, have cast the burdens of this case upon me. The case arises in this manner. In 1923, the respondent was duly appointed a justice of the peace for Kaw Township in Jackson County, Missouri, under and by virtue of Section 2689, and his term by the same statute expires upon the general election day in 1926. In 1925 the General Assembly passed an act, amending Article 2, Chapter 22, Revised Statutes 1919, by adding a new section thereto to be known as Section 2726a (Laws 1925, p. 172.) This section reads:

"The provisions of this article shall be subject to this proviso, to-wit: That in all municipal townships, which now contain or may hereafter contain a city of more than two hundred thousand inhabitants and less than six hundred thousand inhabitants, and in which justices of the peace are paid a salary, every action recognizable before a justice of the peace against a defendant residing in such township shall be brought before such salaried justice of the peace of said township, and none other; and any judgment rendered contrary hereto shall be null and void, except in actions by attachments as is now or may be hereafter provided."

After this act took effect (if it could be effective under the Constitution), one Fred W. Lewis, as plaintiff, filed a suit upon account against the relator here, as defendant below, before John H. Pollock, respondent herein. Respondent filed the case, took the filing fee of $ 3 and issued a summons for relator here, as the defendant in Pollock's court. Summons was duly served and Pollock, the respondent, purposed to hear and determine this simple action upon account for $ 150. Relator brought this action in prohibition on the ground that Pollock was wholly without jurisdiction, this said relator being at the time a resident of Kaw Township in Jackson County. Respondent made a lengthy return, raising, among other things, the constitutionality of the Act of 1925 from several different angles, the details of which we leave for further discussion. Motion for judgment upon the pleadings completes the record here. It will be noticed that the law says, "against a defendant residing in such township," so that respondent is stripped of all jurisdiction except in attachment proceedings, and in cases where the defendant does not reside in the township, but, perchance, might be found in the township, and the plaintiff chanced to be a resident of the township. And, all this because respondent is a fee justice of the peace, rather than one of the eight salaried justices, provided for by Section 2688, Revised Statutes 1919. This is a concise outline of the case, and the divers objections urged in the return can be noted in the course of the opinion, so far as they become pertinent and necessary.

I. The office of justice of the peace is a constitutional office and is provided for by Section 37 of Article VI of our Constitution, thus: "In each county there shall be appointed, or elected, as many justices of the peace as the public good may require, whose powers, duties and duration in office shall be regulated by law."

Note that they may be either appointed or elected, but they shall constitute a class, i. e., justices of the peace. Under this constitutional provision, Sections 2688 and 2689 provides for justice of the peace in a situation such as we find in Kaw Township. The first section provides for eight districts and for eight justices to be elected -- one for each district. Under further provisions these eight officials are salaried. Under the second named section, the officer is appointed as the necessity of the situation appears to the county court, and such officers serve upon a fee basis. There is express authority in the Constitution for appointment of justices of the peace and such fact can furnish no reasonable basis for a valid classification. It is contended that the difference between fees and salary is not suffication for a valid classification, and yet this is the sole basis fixed by the statute before us. Study the wording of the statute for just one moment. In it the lawmakers give their reason for the act, and we need not go further. The return shows the number of cases to be disposed of by all the justices and the number disposed of by the justices on a fee basis. The motion for judgment on the pleadings admits these facts and, therefore, admits the necessity for these justices with full jurisdiction. This is a mere sidelight, however, and one of no real value in determining the case. There are real vital questions in the case, although they affect only justices of the peace. To these we shall address ourselves in the following paragraphs.

II. The individual rights of this respondent are not so great as is the principle involved. It is a matter of vital importance to the jurisprudence of the State that legislative acts be kept within constitutional bounds, and this overshadows the mere pecuniary and legal rights of the respondent. We feel called upon to write for the greater reason rather than the lesser one, which latter clusters around the particular rights of the respondent. The greater goes to the very vitals of jurisprudence and the fixed rules of law. Justices of the peace have been classified, both as to number and as to compensation, according to the population of their communities. This has been done in the instant case by virtue of the two sections (Secs. 2688 and 2689) to which reference has been made. The class under these statutes, in this particular case, are justices of the peace within any prescribed township which falls within the statutory terms. At this time there is no township within this State which falls within the statutory terms, except Kaw Township, in Jackson County. At a later date it is barely possible that other townships may fall within the class, which class has been made general only by this bare possibility. Otherwise this classification would fall. At this date the general class is, justices of the peace in Kaw Township, Jackson County, Missouri. This general class the proposed law subdivides into two classes: (1) Justices paid by fees and (2) justices paid by salaries. Then the law proceeds to a further classification as to jurisdiction and this is one of the vital questions and is one which not only affects respondent, but the residents of the territory served by him and the residents of the territory served by other justices similarly situated. So the whole interest is not centered around the respondent, who chances to be a justice of the peace, but there is the general public which is vitally interested in the classification of their business. They all ask whether or not the classification as to jurisdiction has a reasonable basis upon which to stand. The litigants now before these courts and the prospective litigants more than five miles from a salaried justice are propounding this question of a reasonable basis for a classification to this court at this time. Of the...